IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Cоmplainant, v. Anthony Ray JOHNSON, Respondent.
No. 10-0651.
Supreme Court of Iowa.
Dec. 30, 2010.
Anthony Ray Johnson, Ankeny, pro se.
The Iowa Supreme Court Attorney Disciplinary Board filed charges against the respondent, Anthony R. Johnson, alleging violations of the Iowa Rules of Professional Conduct relating to Johnson‘s representation of four separate clients. The alleged misconduct primarily concerns Johnson‘s failure to communicate with his clients and his neglect of their legal matters. Johnson failed to communicate with the board throughout the duration of the disciplinary process. Johnson did not file an answer to the board‘s complaint, and therefore, the complaint‘s allegations were deemed admitted at the misconduct hearing.
I. Background Facts and Prior Proceedings.
Johnson was admitted to practice in Iowa in 2007. Prior to his admission in Iowa, Johnson was suspended from practice in Illinois for three months and ordered to pay $9,794.50 in restitution for receiving an excessive fee in a routine probate matter. In 2008, the Iowa Supreme Court Attorney Disciplinary Board privately admonished Johnson for charging an unreasonable fee, lack of diligence, and failure to keep a client informed in violаtion of rules
The board filed the instant three-count complaint against Johnson in September 2009. The complaint alleged Johnson, during the course of four separate representations, violated ethical rules by failing to takе action on client matters, neglecting to attend court hearings, failing to communicate with his clients, ceasing representation without notification, failing to take proper steps to protect his clients’ interests after ceasing representation, presenting an improper ex parte order to a court, and failing to cooperate with the board‘s investigation.
Johnson did not file an answer to the board‘s complaint. He did not answer the board‘s interrogatories, request for production of documents, or request for admissions. The hearing was scheduled for December 21, 2009. On December 15, 2009, Johnson‘s wife sent a letter informing the commission that Johnson would not be able to attend the scheduled hearing because he was currently incarcerated in the Polk County jail for failure to pay child support. Neither Johnson nor an attorney representing him requested a continuance.
II. Standard of Review.
We review attorney disciplinary proceedings de novo.
III. Ethical Violations.
A. Neef Matter (Count I). In May 2008, Jacqualine Neef contacted Johnson to discuss how to get her son‘s driver‘s license reinstated despite a $200,000 lien filed against her son. Johnson advised that bankruptcy would void the lien. Johnson agreed to file the son‘s bankruptcy petition in return for $800 plus $299 in court filing fees. Johnson informed Neef the process would take three to six months. After six weeks, Neef called Johnson to inquire about the proceeding; Johnson assured hеr things were progressing. On September 13, 2008, Neef observed that Johnson no longer appeared to work in his Newton, Iowa law office. Neef attempted to contact Johnson on numerous occasions, including visiting his former law office, calling repeatedly, and visiting Johnson‘s home. When Neef left a message on Johnson‘s cell phone informing him she was starting fraud charges and contacting the Iowa bar, Johnson called back and admitted he still had not filed the bankruptcy petition. Johnson never filed the petition and never returned any of Neef‘s fees.
The commission found violations of ethical rules
Johnson‘s failure to resрond to Neef‘s phone calls and requests for information, failure to notify Neef of what progress had or had not been made on the case, and failure to provide notice of termination, contact information, return of paperwork, or a return of unearned fees violated rules
We reject the commission‘s recommendation to find Johnson violated rule
B. Peters Matter (Count II). Robert Peters retained Johnson to represent him in a divorce and child custody proceeding brought by his wife. Peters
One of the matters at issue in Peters’ representation was custody of his three children. Peters explained in his complaint to the board that he hired Johnson because he wanted to ensure he had at least partial custody of his children.
During the representation, Johnson handwrote into a temporary order that “[t]he parties shall share physical custody approximately equally until said hearing” and then presented the order ex parte to the court, which the court entered. Prior to the order, Peters’ wife had custody of the children. Two days later, opposing counsel filed a motion seeking to set aside the handwritten portion of the order and asserting Johnson had added the sentence without opposing counsel‘s or Peters’ wife‘s knowledge or consent.
Johnson failed to attend a status conference to set Peters’ child support payments scheduled for April 27, 2009, and then failed to attend the subsequently rescheduled status conference on May 4, 2009. Johnson instructed Peters the status conferences were only for attorneys, but Peters went to the courthouse during the reschеduled status conference. When Johnson failed to appear, the court made numerous attempts to contact Johnson; however, the court deemed it was “not appropriate to continue this matter any longer,” and set child support payments. Peters testified that at this hearing, the judge set child support at forty-nine percent of Peters’ income before taxes and insurance. Peters was left with only $250 per month to pay his bills. Peters also stated that almost everything in the divorce decree was in favor of his ex-wife.
After Johnson failed tо attend the status conferences, Peters attempted to locate Johnson by calling him; going to Johnson‘s law office, which was empty; and going to his personal residence, where Peters was informed by neighbors that Johnson had moved. Peters testified he had not heard from Johnson at the time of the hearing.
Peters hired another attorney, whom he paid $2000, to try and fix the damage done by Johnson. This attorney was unable to contact Johnson and could not obtain Peters’ client files. Johnson did not reimburse any portion of the fee Peters paid. Peters spent аn additional $200 on copies of checks and files to present to the board.
Peters testified to the precise work Johnson did before neglecting Peters’ case: Johnson defended Peters in a domestic abuse petition in which Peters’ ex-wife falsely claimed there was not an ongoing divorce proceeding, Johnson filed Peters’ response to his ex-wife‘s petition for dissolution of marriage, and Johnson submitted the improper ex parte order. Peters testified Johnson had told him the fees to that point were $4000. Peters’ ex-wife told Peters her feеs at that point were only $500. After the point at which Johnson stopped performing work, Peters paid Johnson an additional $6900 upon request.
The commission found Johnson violated rules
Johnson also committed a serious ethical violation when he handwrote a sentence that had not been agreed to by opposing counsel or the opposing party into an order and presented it ex parte to the court. This behavior violated rules
Lastly, Johnson violated rule
C. Miller and Steibel Matters (Count III). Johnson represented Craig Miller and Nadine Steibel in their respective bankruptcy proceedings. Because Johnson failed to file all of Miller‘s necessary bankruptcy documents, the bankruptcy trustee moved to dismiss Miller‘s petition. Johnson did not file the missing information or respond to the motion to dismiss. Miller was unable to contact Johnson despite repeated phone calls and trips to Johnson‘s office. Miller personally brought the missing information to the trustee and the trustee withdrew his motion to dismiss.
Johnson similarly neglected his client Steibel in her bankruptcy proceeding. Steibel paid Johnson $1500. Johnson filed Steibel‘s bankruptcy petition and then stopped filing the necessary paperwork. Steibel had difficulty contacting Johnson despite repeated calls and visits to his residence and office. On one occasion, she wаs able to catch him at his office. She demanded her bankruptcy files be returned to her, but Johnson stated the files were at his home and that he had to go home to get them. He never returned the files. Steibel took an active role in her case to ensure her proceeding continued and she was discharged from bankruptcy.
Steibel personally filed a motion to withdraw Johnson as counsel. The trustee filed a motion to examine fees alleging that Miller did not receive a quid pro quo exchange for the amount of fees paid to Johnson. The bаnkruptcy court set a hearing about Johnson‘s representation and issued an order requiring Johnson to appear. The notice stated: “SPECIFIC NOTICE TO ATTORNEY OF RECORD FOR DEBTOR: Attorney Tony R. John-
[O]ur office has had tremendous issues with [Johnson]. He doesn‘t return phone calls or any written correspondence in this case, information requested regarding Mrs. Steibel‘s case, and in a previous case....
Basically this comes before the Court because the United States Trustee‘s concеrned.
The trustee detailed the issue of unearned fees in Miller‘s and Steibel‘s cases. The bankruptcy court ordered Johnson to refund $300 in attorney fees to Miller and $750 in fees to Steibel.
The commission found Johnson violated ethical rules
Johnson also violated rule
We do not find there is enough evidence to determine whether Johnson violated rule
IV. Sanction.
The commission recommended Johnson be suspended with no possibility of reinstatement for three years. It also recommended that prior to reinstatement, Johnson be required to: (1) provide proof that he made restitution to Neef, Peters, Steibel, and Miller; (2) provide proof that he will be supervised by an Iowa lawyer in good standing for two years; (3) provide proof he has maintained his continuing legal education (CLE) requirements; (4) complete and produce a comprehensive psychiatric and psychological examination providing proof of his mental and physical ability to practice law; and (5) complete a bar examination review class.
“‘There is no standard sanction for a particular type of misconduct, and though prior cases can be instructive, we ultimately determine an appropriate sanction based on the particular circumstances
In tailoring an appropriate sanction, we look to “‘the nature of the violations, the need for deterrence, protection of the public, maintenance of the reputation of the Bar as a whole, and the violator‘s fitness to continue to practice law.‘” Ackerman, 786 N.W.2d at 497 (quoting Iowa Supreme Ct. Bd. of Prof‘l Ethics & Conduct v. Ramey, 639 N.W.2d 243, 245 (Iowa 2002)). We examine particular mitigating or aggravating factors, including “‘the existence of multiple instances of neglect, past disciplinary problems, and other companion violations.‘” Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Marks, 759 N.W.2d 328, 332 (Iowa 2009) (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Lesyshen, 712 N.W.2d 101, 106 (Iowa 2006)).
Johnson neglected his clients’ matters and failed to communicate with his clients. “When multiple instances of neglect are involved and combine with other violations or cause significant harm to the clients, we hаve imposed a longer period of suspension.” Carpenter, 781 N.W.2d at 270. In Iowa Supreme Court Attorney Disciplinary Board v. Van Beek, 757 N.W.2d 639, 643-44 (Iowa 2008), we imposed a two-year suspension for neglect, forgery, misrepresentation, and failure to deposit unearned clients fees into a trust account. In Iowa Supreme Court Attorney Disciplinary Board v. Sotak, 706 N.W.2d 385, 389-91 (Iowa 2005), we imposed a two-year suspension for neglect leading to dismissal, misrepresentations made to clients, failure to meet court deadlines, and failure to promptly relay settlement funds to a client. And in Iowa Supreme Court Board of Professional Ethics & Conduct v. D‘Angelo, 619 N.W.2d 333, 337-39 (Iowa 2000), we imposed a three-year suspension for neglect, acceptance of fees without court authorization, misrepresentation to clients, disregard of court orders, and failure to respond to ethics complaints.
Johnson‘s neglect of cases and clients are aggravated by his prior discipline. See Wagner, 768 N.W.2d at 288. Johnson was previously suspended in 2003 in Illinois for charging an excessive fee. Johnson was privately admonished in 2008 in Iowa for charging an unreasonable fee, acting with a lack of diligence, and failing to keep the client informed of the status of her case. Clearly, Johnson has a pattern of charging clients excessive fees or neglecting cases and failing tо return unearned portions of fees. Johnson has not presented any mitigating factors.
Johnson was admitted to practice in Iowa in 2007, and has demonstrated in a short period of time a pattern of repeated callousness and indifference to his client‘s matters. He continually failed to communicate with his clients, in each case left them without counsel during the course of their legal proceedings, and routinely failed to return unearned fees. He committed ethical violations in his dealings with the tribunal during Peters’ divorce proceeding and has rеfused to cooperate with this ethics investigation.
The commission recommends that we suspend Johnson for three years with no possibility of reinstatement. We agree the severe sanction of a three-year suspension is warranted. When neglect of clients also involved numerous other violations, the court has entered severe sanctions. In D‘Angelo, this court imposed a three-year suspension for an attorney‘s neglect, acceptance of fees without court authoriza-
Here, Johnson repeatedly failed to keep his clients informed, neglected their court proceedings, failed to make necessary court filings, and failed to return client files or unearned fees. He also submitted an ex parte order to the court, to which opposing counsel had not agreed. Johnson has not responded in any way to the board, except for a letter written by his wife claiming he was in jail during his hearing. Further, Johnson has a history of overcharging clients, resulting in a suspension in Illinois in 2003 and a private admonishment in Iowa in 2008. Therefore, we agree a three-year suspension is warranted.
The commission also recommended Johnson mеet certain requirements before readmission to the bar. The commission recommended Johnson be required to provide proof of restitution to four clients. We agree with the commission‘s recommendation. Johnson must provide proof that he complied with the bankruptcy court orders to return $750 to Steibel and $350 to Miller. The commission did not specify an amount for Johnson to return to Neef and Peters, stating that “[d]ue to the lack of response by Mr. Johnson, the Division was unable to determine whether or not he should be allowed to retain any fees paid by Ms. Neef and Mr. Peters.” We hold that a convincing preponderance of the evidence supports the determination that Johnson must return $1099 to Neef and $6900 to Peters. Neef explained in a letter that she had paid $800 in attorney‘s fees and $299 in court costs. Johnson never took the initial step of even filing the bankruptcy petition. Peters testified that Johnson told him the work he had completed prior to his neglect of the case was worth $4000. Because Peters had paid Johnson a total of $10,900, he is owed a return of $6900. Unlike the situation in Carpenter, the board presented evidence of the amount of unearned fees through client testimony. See Carpenter, 781 N.W.2d at 271-72 (holding the commission‘s recommendation that the attorney be ordered to refund his clients’ funds could not be adopted because the stipulation failed to detail the amount of such funds and no witness testimony or evidence was taken on the matter).
The commission also recommended Johnson be readmitted only if he is supervised by an Iowa lawyer in good standing for two years. The court does not have the ability to order this condition for readmission because “neither the cоurt nor the bar has effective machinery in place for ... supervision.” Lickiss, 786 N.W.2d at 871-72 (quoting Iowa Supreme Ct. Att‘y Disciplinary Bd. v. Kirlin, 741 N.W.2d 813, 819 (Iowa 2007)). Therefore, we reject this requirement.
The commission also recommended Johnson provide proof that he has maintained his CLE credits and taken a bar examination course. We agree and adopt the recommendation that Johnson provide proof he has maintained CLE credits. Johnson‘s wholesale abandonment of his clients and—apparently—of his practice suggests a need to stay abreast of legal developments prior to readmission. We
Lastly, the commission recommended Johnson provide proof of a psychological and psychiatric evaluation. We agree that such evaluation is necessary given Johnson‘s apparent total neglect of all of his ongoing matters and his failure to even respond to board inquiries. See Lickiss, 786 N.W.2d at 871.
V. Conclusion.
Because Johnson has violated ethical rules by severely neglecting four client matters, failing to respond to clients’ inquiries for information, presenting an ex parte order to a court under false pretenses, failing to account for and return unearned fees, and failing to respond to the board and commission, we suspend Johnson‘s license to practice law with no possibility of reinstatement for three years. This suspension shall apply to all facets of the practice of law as provided in
LICENSE SUSPENDED.